An (Enhanced) Slap to the Head

I'm sure it comes as no surprise that if I punch you in the face in order to steal your wallet I am facing jail time. But it may come as a surprise that if I commit the same act while insulting your ethnicity, religion, sexual orientation or disability status I could face an additional 10 years. Welcome to the wonderful world of "hate crimes."

Last week the Senate passed the Local Law Enforcement Hate Crimes Prevention Act of 2007 also known as the "Matthew Sheppard" act. Yesterday President Obama signed the bill into law. The basic thrust of the law is that crimes motivated by a victim's actual or perceived gender, sexual orientation, gender identity or disability deserve special protection, and enhanced punishment.

The justification of hate crime legislation is that when a vulnerable person is victimized solely due to physical characteristics over which he or she has no control such a crime is an affront to American society and accordingly deserving of extra contempt.

In the abstract, I suppose it's hard to argue with this reasoning. However life is not lived in the abstract. Punishment requires the arbiter of sentencing to get inside the mind of the attacker. Personally, I fail to see how punching a 75-year old woman and stealing her purse is any less culpable than punching the same woman while calling her a stupid Jew.

Even the title of the law speaks to its silliness. in 1998, Matthew Shepard was a student at the University of Wyoming when he was attacked because he was perceived to be gay. His attackers had planned to rob him but ultimately the robbery resulted in Shepard's death. His attackers, Aaron McKinney and Russell Henderson pretended to be gay in targeting Shepard. They ultimately hanged him like a scarecrow, and left him to die. A hideous crime to say the least. However both of his attackers were prosecuted for the attack. While the prosecution could not present evidence as to the motivation of McKinney and Henderson, because Wyoming did not recognize hate crimes due to sexual orientation, both defendants were successfully prosecuted and are serving life sentences in Wyoming. In other words, even if it could be shown that the motivation for the attack was because of Shepard's sexual orientation, under the law, his attackers could not be punished any more than they have been.

This week we just had a group of bigots come to New Jersey and target Jewish institutions, including the Anti-Defamation League, who by coincidence was one of the main backers of enhanced hate crime legislation. This particular hate group thrives upon publicity and uses as ammunition any news which they can spin to show that minorities in America receive special privileges and protections at the expense of "true" -- read White Christian--- Americans.

While valid arguments can be made that at time minorities need, and deserve special privileges and protections, any such action should be made with the intention of putting minorities on equal footing, not in affording a special status of protection. A fist to the face is as menacing to a black, to a Jew to a gay as it is to a Christian White man and both should be prosecuted to the fullest, just as the crime committed to Matthew Sheppard was.

Once we get government involved in the business of not only the conduct of a criminal defendant, but also its motivation, we are no longer involved in a sphere that I believe is under the provenance of judicial law, but rather veering off into the realm of psychology and social science. In doing so, we undermine the basic proposition under which the American Experiment was founded: That is, that all people are created equal and that all people will be afforded equal protection under the law.

That Congress has engaged, and prioritized this exercise in social engineering, and that President Obama signed the legislation yesterday and hailed it as an expansion of freedom leads me to question the Congress and the Administration's s priorities. Our servicemen remain stuck in the Middle East seemingly without conclusion. By even the most optimistic estimates our economy will fall further behind over the next ten years. Health care is still a mess; but at least we can feel good that people who attack minorities while engaging in slurs will be facing an extra 10 years of jail time....Meanwhile the bigots out there, who would like to do the attack, have a new bullet point in their literature to raise money, and recruits....Pun most definitely intended.